Friday, June 1, 2012

Copyright cases like Oracle v. Google are more controversial than software patent cases

Judge Alsup said on Thursday that the API material Google "replicated" from Java was not protected by copyright. I have commented on the implications of this finding in a detailed post that also explains the fundamental line of thought behind this ruling that Oracle has said it will appeal. In that post I also pointed out that if Judge Alsup wasn't unsure of his own position on (un)copyrightability, he'd never have held a copyright trial that was almost entirely about the APIs. The Federal Circuit, which has more expertise in intellectual property than any single district court, is now going to look at this.

I wanted to add a few personal observations, just quickly.

Judge Alsup adopted Google's argument that APIs should be protected by patents rather than copyright. But when Google gets sued over patents, it also complains that those are all "bogus" patents, though half a dozen of them have already been successfully enforced against Android. In other news, Google filed an EU antitrust complaint because a non-practicing entity named Mosaid, with which Google itself did a patent transfer deal worth $11 M last year, acquired patents from Nokia, and blames this on collusion between Microsoft and Nokia. Instead of dealing with specific infringement claims, Google prefers to argue that entire categories of claims, or categories of plaintiffs, aren't acceptable.

While Google is against either kind of lawsuits, one of my take-aways from the last year and a half is that certain software copyright issues tend to spark far more controversy -- and a more acrimonious kind of controversy -- than software patent lawsuits. Out of the 700+ blog posts I've done so far (which as per today, June 1, 2012, have been read well over 5 million times (see the real-time counter, courtesy of Google, in the right-hand column) and been mentioned in articles that in my estimate have collectively been viewed many billions of times, only a couple dozen posts related to copyright, while almost all other posts were about patent disputes. Still, those few dozen copyright posts included a very few stories and statements that drew far more aggressive reactions than those hundreds of patent-related posts combined.

Sometimes it's only a matter of time until a controversy turns out to have been unnecessary. For example, Judge Alsup overruled the jury on a set of decompiled files. Largely the same ones who now agree with him on (un)copyrightability disagreed with me last year when I published those files and pointed to the infringements identified.

I'm not going to be discouraged by any controversy, whether it's necessary or whether it's manufactured, from talking about copyright issues in the future. I look forward to the Federal Circuit's review of Judge Alsup's take on copyrightability, and to whatever new questions and issues will come up that are relevant to the work I do. What's relevant is relevant whether it's popular or not.

From the perspective of a programmer, I like software copyright far better than software patents. But as a litigation watcher I find software patent cases both more interesting and, relatively speaking, more predictable. I hate to say this, especially the part about "predictable" (again, relatively speaking), because it's actually used by some as an argument in favor of software patents. But that doesn't prevent me from conceding that there's some truth in it.

More than seven years ago, one of the intellectual property lawyers on Google's defense team against Oracle, Greenberg Traurig's Heather Meeker, wrote an opinion piece for Linux Insider in which she argued that copyright protection of software is "tricky" because copyright focuses on expression while the value of software is in function, the very thing that copyright law wasn't designed to protect. With the exception of "wholesale copying" of entire products (which is what most software copyright cases are about) by "shameless counterfeiters", Mrs. Meeker says that "actually identifying software copyright infringement is like reading tea leaves" because "people using software to develop products rarely copy software without modification". She goes on to say:

"The serious copyright battles are over the copying of bits and pieces, structures, design elements and so forth -- and applying copyright law to those cases is difficult, expensive and unpredictable."

I agree with her. I don't agree with her conclusion that software patents are a good thing, but I have to say that she was right on this one.

Those who said from the get-go (even before any specifics were known about the infringement allegations) that Oracle didn't have a case can now celebrate because after a six-week trial and a subsequent copyrightability decision, Oracle depends on an appeal while Google can, at least for another couple of years, continue to use Java in Android the way it always has. But as you can see, one of Google's own external copyright lawyers says these cases are "difficult, expensive and unpredictable". The outcome of an appeal is not known, but one thing is for sure: the lawyers at the Federal Circuit have a more strategic perspective on intellectual property while Judge Alsup's primary concern over the last 12+ months was case management. Oracle argues that Judge Alsup's "ruling, if permitted to stand, would undermine the protection for innovation and invention in the United States and make it far more difficult to defend intellectual property rights against companies anywhere in the world that simply takes them as their own". That's the policy level, and whatever the outcome will be, there's no question that the Federal Circuit is much more interested in getting its decisions right at that level than Judge Alsup was.

In software patent cases, there's always a debate about whether a particular patent is valid. Most of the time, a challenge to the validity of a patent is based on prior art, compared to which something newer is alleged to have been obvious or non-novel when the relevant application was filed. Some challenges also relate to indefiniteness, lack of structure and other arguments. But there's hardly ever a dispute over patentable subject matter. Even here in Europe, it's simply a given that software is patented, and everyone including Google (through Motorola Mobility) asserts software patents like any other patents.

In copyright law, there's a need for much more clarification. Judge Alsup made clear at the end of his ruling that this was not a ruling against API copyrightability in general but about the specifics of this case. APIs continue to be copyrightable, but in this case one district judge thought that the material that was reused was outside the scope of copyrightable subject matter -- and the next court may decide differently, be it on this same case or on a different case.

I never claimed that the decision was going to be predictable. I did, however, point out that the structure, sequence and organization (SSO) of programs has been copyrightable in the United States for more than 22 years -- and Judge Alsup's order explicitly states, at the end, that it "does not hold that the structure, sequence and organization of all computer programs may be stolen". One of the questions the Federal Circuit will ask itself is whether Judge Alsup's ruling is progress in terms of additional clarity, or needs to be modified in potentially outcome-determinative ways. The Federal Circuit may still not provide all of the clarity that the industry would like to have. Even if this went all the way up to the Supreme Court (which it might), there's likely going to be a limit to the clarity that a single case can provide. But there will be more clarity than now.

It would be great news if the parties could settle. Great news for Android. For Java. For the two companies. For their ecosystems. But for the development of the law, and in order to have less controversy in public debates over copyright cases of this kind, it would actually be very helpful for the Federal Circuit to rule on this.

In the meantime, there are also some things that those debating the issues can do to have a more reasonable, facts-focused discussion -- not only but especially on software copyright issues which are controversial enough all by themselves.

For example, while I stand by what I actually say, no one should have to accept responsibility for things he didn't even say. I could provide a long list of examples. I will give just one example because it's both simple and representative. In recent weeks I have been repeatedly accused of having "speculated", "claimed" or "predicted" that Oracle was going to receive billions of dollars -- or, more specifically, $6.1 billion -- in damages. There are lies, damn lies, and there are lies as nefarious as this one. Apart from the fact that I said on numerous occasions that damages were a secondary consideration in this case to the possibility of Oracle winning an injunction, all I did was that I read a publicly accessible filing by Google's lawyers and quoted from it. Here's Google's filing, and here's my blog post on it, entitled "Oracle expert says Google owes between 1.4 and 6.1 billion dollars". A few days later, Oracle contradicted this representation and said that the 6.1 billion figure was just the upper end of a hypothetical range while the actual demand was $2.6 billion at the time. Why did the $6.1 billion figure become known? Because Google itself wanted it to get out. Google's lawyers could have redacted the figure, or they could have referenced it without stating it in a public filing. But they opted to put this information out. My reporting on those filings was just factual. The filings said what they said. And I wasn't even first to pick this up: here you can see that Reuters picked up the information before me. No one can blame them either. If Google says that Oracle allegedly says it wants a certain amount, or an amount from a certain range, it's legitimate to report on it. For Reuters, for me, and for everyone else. Obviously, a damages claim by a party is not an outcome, or even a likely outcome -- but I trust that most of my readers don't need to be reminded of that again, and again, and again.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.